75 Vt. 375 | Vt. | 1903
The contention is over the right of the orator to compensation for stone taken by the defendants from the farm of E. B. Phelps, at a point that will herein be called the “East Quarry,” and by them' used in the construction of the Rutland-Canadian Railroad; and over the orator’s right to an injunction restraining the defendants from continuing to take stone. The orator’s right, if he has any, is dependent upon whether effect can be given to a lease from Phelps to him, wherein it is attempted to grant a right to quarry stone by the use of the following language: “The exclusive right of quarrying and taking away stone from a piece or parcel of land situate as follows, to wit, in the town of South Hero, Vt., beginning eighty rods easterly of the southwest part of my (meaning said Phelps’) farm, and extending northerly to the north line of land owned by me, eighty rods east of the lake shore.”
Prom this description of the premises, it is evident that the lessor intended to grant a right to quarry stone from some particular part or parcel of his farm, an;d that the lessee expected that he was acquiring such right; but the description of the place from which a right to quarry stone was intended to be granted is so indefinite that the place the parties had in mind cannot be ascertained, and for this reason, the lease is inoperative as against the defendants. There is nothing in the language used, when read in the light of the situation of
The orator contends that the words “southwest part of my farm,” should be read “southwest point of my farm”; but this cannot be done.' There is a southwest part of the farm, consisting of a large area, corresponding with the language of the lease. When monuments exist corresponding with the sense of the terms used in the description of land, they ordinarily govern; and they cannot be omitted, and words of an entirely different meaning substituted. __ The parties have chosen the words found in the lease, which designate a large area of land as 'a monument from which to measure to find the point of commencement of the survey; and we cannot change this area to a single point or corner, when, as we have seen, the obvious purpose of the grant would be as well served by commencing at a point eighty rods easterly of any other part of the southwest part of the farm. A point of commencement eighty rods easterly of some places on the southwest part of the farm is east of the East Quarry, and from
It is insisted that the orator was in possession of the East Quarry. The finding upon this point is that the lease was recorded in the town clerk’s office, January 13, 1899; and that shortly after the orator took possession, opened a quarry on the west side, built a dock and blacksmith shop, erected a derrick and entered into a contract with O’Brien, McHale & Co. to take stone from the west side. There is no finding that the orator ever took possession of the East Quarry, or did any work thereon. On the contrary, it is found that no stone were taken from the East Quarry except by defendants O’Brien & Sheehan. The orator having no paper title to the East Quarry, his possession of a quarry on the west side of the farm did not, by construction, extend to the East Quarry. When one takes a deed purporting to describe a tract of land, but which, through mistake, describes nothing, and under such deed taires possession claiming the whole tract, but cultivates a part only, he will hold adversely the part cultivated, and no
The oral testimony respecting the understanding of the parties at the time the lease was executed, from which the master finds that the parties intended the lease to cover the East Quarry, was inadmissible; and this finding cannot be considered. While deeds must, if possible, be so construed as to effectuate the intent of the parties, anid in arriving at the intent expressed or implied in the language used, it is permissible to consider the situation of the parties, the subject-matter of the grant, and the circumstances connected with the transaction, and every part of the deed is to be considered with the help of such evidence, it is not permissible to aid or help out an inherently insufficient description by parol evidence of what the parties intended to include therein. Kinney v. Hooker, 65 Vt. 333, 36 Am. St. Rep. 864; Pingrey v. Watkins, 17 Vt. 379; Abbott v. Choate, 47 Vt. 53; Fletcher v. Clark and Burton, 48 Vt. 211; Smith v. Fitzgerald, 59 Vt. 451; Butler v. Gale, 27 Vt. 739; Grand Trunk R. R. Co. v. Dyer, 49 Vt. 74.
Decree reversed and cause remanded with mandate that the bill be dismissed.